The Hard Line on Immigration

For more than a decade, the U.S. has assumed a tough stance on non-citizens by increasing its use of detention, flexing its muscles on deportation, and raiding work sites. Ten alumni and faculty—lawyers and judges who have firsthand experience with immigration—discuss the enforcement of immigration law and the costs and impact on our national security and our society.

Mayra Peters-Quintero ’99, Program Officer, Migrant and Immigrant Rights, Human Rights Unit, Ford Foundation: Immigration enforcement issues have received unprecedented public attention recently. We’ve seen coverage in the mainstream media on whether local officials should enforce immigration law, workplace raids, detention conditions, and representation for immigrants. The new administration faces the task of providing day-to-day guidance to government officials who administer the immigration laws and are the center of our enforcement scheme. This roundtable will be an opportunity to reflect on these issues from the different perspectives around the table. A good place to start would be to ask each of you: If you could change one thing about the current enforcement system, what would it be? Out of ingrained deference to judicial authority, I’ll start with Judge Katzmann.

Robert Katzmann, Judge, U.S. Court of Appeals for the Second Circuit; Adjunct Professor, NYU School of Law: I would try to facilitate effective legal representation in the system. A system in which nationally only 35 to 42 percent of immigrants have legal representation is flawed. Given the high stakes for immigrants and their families, the lack of representation and the problem of deficient representation pose real challenges in terms of assuring fairness.

Gregory Chen ’97, Director for Legislative Affairs, Lutheran Immigration and Refugee Services: Lutheran Immigration and Refugee Services has a broad base of networks, people, and organizations providing services for immigrants. Its greatest concern is about the escalation of detention and the resulting inhumane treatment of detainees.

Recently, a Department of Homeland Security official testified that in fiscal year ’09, they anticipate 442,000 people will be held in the immigration detention system. That’s an astronomical increase in the past 10, 15 years. The budget allocation is over $1.5 billion for detention. There is this disproportionality. Why are we using prisonlike facilities for people who pose no threat to physical safety, no threat to national security, and also are likely to appear at immigration proceedings because they’ve got a family and a job?

What strikes home the most is the fact that the Lutheran church is a midwestern, moderate constituency, and they have come out and said: “We’re shocked about this. We’re concerned about what we hear. Aren’t there alternatives?” Rule of law is very important to the Lutheran constituency. What about using parole, alternatives to detention and incarceration, that the criminal justice field has already massaged? For some reason, the immigration system just hasn’t been able to mine those creative solutions for more humane and also less costly alternatives.

Cristina Rodríguez, Professor of Law, NYU School of Law: In my “official capacity” as someone who is originally from south Texas, I would reorient our approach to the border and border enforcement. Resource allocation is dramatically weighted in favor of border enforcement, rather than enforcement in the interior. But much of what is spent on the border represents a gigantic waste of money, because there’s very little return. I don’t mean there’s little return with respect to either deterring undocumented immigration or in the number of arrests, but in terms of security, which is the way that border enforcement is generally sold.

The construction of the fence, in particular, is highly disruptive to communities that are real binational communities, and that’s a substantial loss. From a foreign affairs perspective, it’s exactly the wrong way to set the agenda with Mexico, which should be a partner in trying to deal with broader immigration-related issues, such as how to manage migration between the two countries and reduce undocumented immigration.

Rachel Rosenbloom ’02, Assistant Professor, Northeastern University School of Law: I would agree with that point, and add that there’s a significant waste of money in interior enforcement that we should be worried about as well. I don’t think we should see the border and the interior as pitted against one another, but rather as part of the same, larger picture.

All of which raises the question of prosecutorial discretion. Not everyone who is deportable should be deported. Before thousands of dollars are spent on detaining and deporting someone, we need to ask: Is there a substantial federal interest in the removal?

In the final days of the Clinton administration, INS Commissioner Doris Meissner issued a memo on prosecutorial discretion that laid out a set of criteria for answering this question: What are the person’s ties to the U.S.? Are there family members depending on this person? If there is a criminal conviction, how serious was the offense and how long ago did it occur? This memo is unfortunately a dead letter these days. If the established criteria were being used, far fewer people would be in removal proceedings, which means fewer people detained, fewer people in need of counsel, and fewer petitions for review taking up space on Judge Katzmann’s docket.

Andrea G. Black ’96, Network Coordinator, Detention Watch Network: I’ve been thinking about this question of “if there were one thing…” What really can get at the core of creating change?

In my mind that one thing would be a cultural shift away from the criminalization of immigrants overall, looking at balanced enforcement that upholds due process and human rights and at strategic priorities that keep our country safe. We’re seeing the creation of an underlying link between the immigration enforcement system and the criminal justice system. Immigrants are now the fastest growing population in our prison system. The U.S. is increasingly using our failed criminal justice system to imprison, detain, and deport immigrants. So unless we target that underlying culture, it’s going to be hard to have more than superficial changes.

Philip J. Costa ’92, Deputy Chief Counsel, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security:* I would like to pick up on the issue of prosecutorial discretion. I get frustrated when I hear attorneys say that ICE does not exercise prosecutorial discretion, because I know firsthand that it does so every day.

I am responsible for new attorney training in my local office, and every single attorney who joins our office receives a lengthy lecture from me about prosecutorial discretion on his or her very first day. I explain that prosecutorial discretion is a key litigation priority. I make clear that I expect ICE attorneys to be the most prepared attorneys in the courtroom, that I expect them to understand the extraordinary stakes that are at issue for each applicant, and that I expect them to understand that their job is not to win a case but rather to achieve the correct result.

I also chair a working group that recently established ICE’s first national trial advocacy training program. And at the close of each program, after spending a week teaching trial techniques to ICE attorneys, I personally lead a discussion on prosecutorial discretion. So ICE attorneys get the message very clearly that prosecutorial discretion is a key litigation priority and that they must exercise their authority responsibly.

Benita Jain ’03, Co-Director, Immigrant Defense Project: Andrea’s comment about a cultural shift is incredibly important. The culture or the goal at both DHS and DOJ is often “Let’s try to deport as many people as we can.” Numbers are the measure of success— more people detained, more people deported—and not necessarily proportionality or fairness or some other value.

I would love to see in both agencies a more reasonable approach to interpreting immigration statutes. We have a regime that subjects immigrants to some of the harshest consequences imaginable, including mandatory deportation and mandatory detention. On top of that, we have DHS looking for aggressive outlier arguments to expand the intended reach of these laws. For example, they have argued that simple drug possession is really drug trafficking, which would result in mandatory deportation. And that a drunk driving offense is a crime of violence. And that a misdemeanor offense is an aggravated felony. Taking the law to the extreme, whether the language calls for it, whether Congress actually intended these consequences, is a big problem. Even Judge Posner once said that the only thing consistent about the government’s approach is that the immigrant always loses.

Omar Jadwat ’01, Staff Attorney, ACLU Immigrants’ Rights Project: If you’re not going to change any statutes, discretion is the key to getting the system that we have working better. But not necessarily just prosecutorial discretion in the classic sense of a prosecutor operating on a set of facts that’s before him and deciding, Is this a case that, according to some guidelines, makes sense to defer or not?

The federal executive is, or should be, in charge of this whole system, at least until a case goes up on appeal. So if, for example, immigration judges are totally overloaded, that’s in part because the federal government isn’t exercising its discretion overall in a way that makes that system work, that makes it possible to allocate those resources the right way. You’ve got people at various points in the system shoving cases into the funnel without regard to whether the funnel’s backed up or, realistically, how many cases is it reasonable for us to put in, given the capacity we have? What’s a reasonable way to interpret the laws, given the facts on the ground?

Katzmann: Isn’t the statistic something like 1,500 cases per immigration judge? Also, in terms of how much support that judge gets, there’s one law clerk for six immigration judges. It takes time to reach the right decision. Especially in these cases, which are so difficult and are so fact-intensive, if you don’t have the time and resources to develop the record and to think through the issues, it’s very hard to secure justice.

Nancy Morawetz ’81, Professor of Clinical Law, NYU School of Law: Part of the problem is that it’s not prosecutors who are making the decision to issue an NTA. A Notice to Appear, which starts the whole deportation process, is issued by a border patrol officer, an immigration customs enforcement officer, or from somebody having been identified just because they were arrested, even if the charges were dismissed. So cases are placed in the system by people who aren’t really held institutionally responsible for whether those are the right cases to be in the system, whether those cases cause enormous cost to the system and to those individuals. If somebody is arrested in a city jail, is identified and placed in proceedings, that person might raise a defense that he or she is a citizen. During the months or years it takes to prove citizenship, he or she could be detained or shipped around the country.

What I would try to do is go back to a document called Operation Endgame, which was announced in 2003. It was a blueprint to literally “remove all removable aliens.” And it launched a whole series of projects that led to an internal culture at the agency of “If you can find someone, and they’re removable, then put them in.” Maybe if they can come up with a defense, they can persuade the immigration prosecutor that they have a good case. It’s quite true that when people can show relief, in many cases the immigration customs enforcement lawyers will waive appeal. But generally, they feel limited to where it’s clear the person has relief. So the problem is up-front. Cristina raised the question, is this a border-enforcement- versus-interior-enforcement question? What I would really hope is that we get beyond that zero-sum game concept in which there has to be a shift and the agency has to show large numbers— because if you ask for numbers, you’ll get numbers.

I would look for the Department of Homeland Security to officially repudiate Operation Endgame. To say, that’s the enforcement practices of the last administration. And that they are looking to design enforcement at the border and away from the border that is thoughtful about whether it makes sense at the very beginning to place somebody in proceedings. If somebody is going to be able to adjust their status, but their number just hasn’t come up yet, why are you putting that person in proceedings? The person who makes that decision at the beginning can’t just have an institutional job that says, you find the people, and somebody later will figure out what we do with the people. They have to have some responsibility at the beginning to be asking whether they’re finding the right people in the first place.

Rosenbloom: I recently read a statistic that an estimated five percent of the population of the United States is removable. If that is anywhere close to accurate, that’s a lot of people. I don’t think any of us would argue that the job of this agency is to remove five percent of the population.

President Obama has signaled that this administration is shifting away from the large workplace raids we saw during the Bush administration. That’s an important start. The question is, can the culture of the agency change enough to extend that approach to some tougher issues? For example, to say that ICE is no longer going to sweep up permanent residents who end up in county jails for minor offenses.

Rodríguez: Is there something inherent in the culture of an enforcement agency, where numbers are important as benchmarks, that leads in that direction? There’s a need for external mechanisms of supervision, like congressional oversight. We should consider whether congressional oversight can be effective at shifting enforcement priorities, or if it’s even possible for something to come from the top and change the culture of the whole agency. Or, do the agencies just develop enforcement priorities of their own without regard to direction they might or might not be getting from the political process? The resetting of priorities thus goes back to whether you can change the culture of the agency.

I’m curious what those who deal with the agency on a more regular basis think about the possibilities for that.

Morawetz: What happened with people with outstanding orders of removal is a good example of the problem of turning to numbers. People then got tagged and called fugitives, which is not fair, since many people with outstanding orders don’t know that they have an outstanding order. Nonetheless, that was the stated priority. When performance standards were created geared to numbers, that priority shifted to being basically whoever could be rounded up. We represent such a person in our clinic who was simply living in an apartment that was the subject of a raid.

It’s a lesson, because if you’re looking for numbers, you’re going to be making a lot of mistakes. There have been reported instances of citizens being placed in removal proceedings and sitting in detention for a long time. I don’t walk around with my passport. We are not a country that requires a national ID.

Jain: That is really instructive. Since 1997, more than one million people who have convictions or some kind of interaction with law enforcement have been deported. They’ve left behind more than two million spouses and children in the U.S. The stated reasons are national security and public safety, but people’s experiences don’t bear that out. We see people being tagged for deportation—through jails, when they apply for naturalization, when they return from trips abroad—for convictions that may have happened years ago, and for which they’ve already served their time. People who have really gotten their lives together or are trying to get their lives back together are suddenly and permanently ripped from their families and communities. That’s where prosecutorial discretion, and the need to determine whether a situation actually merits enforcement action, again comes in. Deporting one million people with convictions does not necessarily mean that our communities are safer when families have been split apart and these same communities are disintegrating.

Black: I was reflecting on what Cristina was saying, about this issue of what we need outside the system. Outside accountability is really critical, and we’ve been calling for not only codification of the detention standards that are currently in place but an outside oversight mechanism. Take the case of Sheriff Joe Arpaio in Arizona, who most recently paraded a group of shackled immigrants down the road, to the horror of a lot of people. Actually his local immigration enforcement program is under the supervision of ICE. In October of last year, ICE reviewed the program and said that they had no problems with it. Clearly there’s some internal guidance that’s missing. We need to think very carefully about what this outside oversight should look like.

Maybe it’s a good time to talk about money interests too, because of our economy. It’s not only the wastefulness. We know that there are many private-prison lobbyists on the Hill advocating for increased spending. But also, where is the money going in terms of local and state agreements? These local law enforcement agreements are meant to be unfunded mandates, so a lot of communities are actually suffering. However, the way these programs are being sold, local communities are being told that there’s going to be money for their detention beds. For example, at another recent hearing in Washington, a local sheriff in Maryland said that it costs him $7 a day to house and feed an immigration detainee, and he gets $83 a day from the government. And then he said, “Oh, but there’s no incentive for me.” Seriously.

Jain: And the amount of money that’s spent in appealing immigration judges’ grants of relief, in keeping people in detention, or in litigating through the federal courts is phenomenal.

Chen: It is striking to see how faith leaders are responding to the immigration debate. A lot of faith communities see rule of law as being very important. But they are also seeing that punitive enforcement of those laws is inhumane and morally wrong. The extreme cases of enforcement have galvanized a shift in attitudes and beliefs about the fairness and justness of our laws and government practices. It’s beginning to happen where people see the inhumanity of enforcement actions. Last year, there was the largest raid ever, at a Postville, Iowa, facility. The Lutheran bishop from northeastern Iowa was born and raised in Postville. He spoke with personal conviction about what had happened to his community of a few thousand. To have 400 people suddenly gone has reverberations across the community. Schools actually had to close down; teachers lost their jobs.

Lutherans and everyday Americans were shocked by the fact that they used black Suburbans and helicopters and all sorts of high-tech weaponry when it was highly unlikely that anyone was armed in the factory. Many of the workers were unlikely to present a flight risk. Then the government charged them with aggravated felony identify theft and used aggressive bargaining tactics, such as exploding plea offers. Those detained had counsel that were representing huge numbers of clients and had little time to prepare their cases. There’s been a culture of fear, especially post-9/11, that has enabled people to ferret out and identify anybody who might be different. Until a shift in attitudes occurs, where that pervasive fear dies down, it’s going to be very hard in local communities to have rational and fair policies and legal reform.

Jadwat: Part of what we need may be a culture shift, but part of it is also just a volume shift—getting politicians to understand, which maybe they saw to some degree in the last elections, that what they’re getting in their in-boxes and on their phone lines from these very well-organized restrictionists is not really representative of what people at large are thinking.

Costa: I lend a different perspective because I’m hearing the agency that I’m a part of described. The culture that many of you are describing has nothing to do with the agency that I work for. At the heart of ICE’s mission is the protection of our communities by targeting national-security risks, dangerous criminal aliens, and aliens who have committed human rights atrocities, including persecution, torture, and extrajudicial killing.

Frankly, I’m taken aback at the notion that the jails are a bad place to look for litigation priorities. It strikes me that jails are actually a particularly good place to look. I appreciate that there are difficult cases, and we may agree to disagree about what constitutes a “minor” crime. For example, in my judgment, someone who has engaged in DWI, which statistics reveal is often a recidivist offense, presents a real threat to the community.

Further, I object to the notion that there is not a substantial security payoff for ICE’s enforcement actions. The government doesn’t get extra points for removing somebody on a national security-related charge if a simple visa-overstay charge works just as well. Sometimes, what seems like an ordinary immigration charge involves additional considerations.

Rosenbloom: No one would question the notion that preventing terrorism is a worthy goal. The problem lies in leaping from that to justify a broad range of enforcement actions that have nothing to do with terrorism. Deporting a former drug-user who has children depending on her is not going to make America a safer place for anyone, and it is going to destroy a family in the process. So-called “criminal aliens” are often simply ex-offenders who are important and valued members of their family and community.

Jain: Of people who have been deported because of convictions, at least 65 percent have been for nonviolent offenses. Perhaps 20 percent for violent offenses. They have included veterans that have fought on behalf of the United States. Identifying an immigrant who has a conviction does not automatically mean that you’re protecting a community and enhancing public safety.

Costa: We’ve talked a little bit about older crimes. For those of us who have lived through changes in the statutory scheme, we’ve seen people with old criminal offenses who were never put into immigration proceedings but who would have been eligible for relief if they had been put into proceedings. Then suddenly the immigration laws change. Now some of these same people travel abroad to visit family, and when they show up at the airport upon their return, they have a problem. This resulted in a hailstorm of litigation, going all the way up to the Supreme Court.

Jain: Nothing requires DHS to take the extreme positions on statutory interpretation that it does. In case after case, the Supreme Court keeps overturning the government, sometimes unanimously. The Lopez opinion refuting the government’s position that simple drug possessions are drug trafficking aggravated felonies, simply because a state labels them “felony,” reads like a grammar lesson to the government.

You also mention that the law keeps changing. People who never imagined that they would have been deportable at the time they pled guilty years ago all of a sudden are. That and the lack of counsel for most people makes it even more important for the government to interpret laws more reasonably and use prosecutorial discretion.

Morawetz: How people get into the system is probably the most important question, and that’s long before that case shows up in immigration court. But it’s interesting to think about what happens in immigration court and what can be done to make that work better. Are there things from your perspective, Mr. Costa, that could be done by people who care about the rights of immigrants to enhance the ability to exercise discretion?

My perspective is that certain kinds of discretion are easy. If you are in the middle of a hearing and it’s clear the person has a really strong case, the government lawyers will often then say, that’s enough, judge. We’re willing to take an order. We’re not going to appeal. That’s a major form of discretion that goes on all the time. But the other forms, like, to drop the case, decide that the notice to appear was improvidently issued—my impression is that that’s really hard, institutionally, for a lawyer to do, and that’s a lot of work compared to going forward with the case. Are there things that could be done inside to make it more friendly to the exercises of discretion for the people who probably face a more crushing caseload than the immigration judges face?

Costa: Sometimes applicants or their attorneys will ask ICE for the exercise of prosecutorial discretion. The applicant may have no statutorily available relief. Nonetheless, there may be compelling humanitarian considerations, and the applicant may ask ICE to consider administratively closing or even terminating removal proceedings. Depending upon the circumstances, ICE may be authorized to do that, but it needs a whole host of information to be able to make an informed determination. As a result, applicants and their attorneys need to provide ICE counsel’s office with as much information as possible. I promise you, when someone brings that sort of request to ICE counsel’s office in New York, every single request gets a close look.

I want to emphasize that we understand the significance of these cases to the applicants. In a typical asylum case, for example, the person sitting across from us is litigating issues relating to his immediate liberty and potential return to a country where he may face economic deprivation, persecution, or even torture. The stakes of these cases are extraordinary, even in the nondetained setting, particularly when you consider family reunification principles. Whether a claim is meritorious or nonmeritorious, a typical applicant walks into court thinking, “Depending upon what happens today, I may be able to see my wife or my husband or my children for the first time in five or six years.” I cannot imagine something that could be more important.

Peters-Quintero: Judge Katzmann, how do we increase adequate and competent representation in the system?

Katzmann: Short of legislative solutions, one approach is to engage the legal community. These are not easy cases. It’s not simply that a lawyer can go in without any training and do a competent job. What we have to do is to provide encouragement to lawyers in the private bar to work with lawyers in the immigration bar. It starts in law school. The immigration clinics can play a very critical role in interesting lawyers, even if those lawyers don’t go into immigration practice itself. And law firms need to devote more of their pro bono resources to immigration.

The state gives lawyers a monopoly—the legal system is essentially a monopoly of lawyers—and in light of that monopoly, there surely is some reciprocal responsibility among the lawyers to serve those in need. The immigrant poor should be at the very top of the list. If you have more and more lawyers taking on these cases, they will have a greater understanding more generally of the complicated issues associated with immigration. Their involvement will enrich the public policy debate.

Chen: Prior to coming to Lutheran Immigration and Refugee Services, I was director of policy at a refugee advocacy organization, but I also happened to run what, at the time, was the largest pro bono law program for children in immigration proceedings.

Pro bono lawyers can be excellent, but as the solution to the huge caseload that you’re seeing in your courts and on your dockets, it’s not the answer. Pro bono lawyers generally are highly selective in the kinds of cases they are willing to take and also can’t take more than a few cases at a given time. Then also, for reasons of geography, for reasons of timing, there’s going to be a large population of immigrants in proceedings, especially those detained, that can’t be represented. At a fundamental level, there is not going to be any real basic way of replacing having a full-time practicing lawyer. So the answer has to involve some kind of paid-for counsel, maybe government paid-for counsel.

Black: For example, what about the people where I used to work in Eloy, Arizona, out in the middle of the desert? Currently there are two thousand people detained. Right now, there are two staff attorneys trying to perform legal orientation and consultation. It’s definitely not representation.

It’s so hard to get access to counsel when people are detained thousands of miles away from their families, and shipped around constantly. We have this system that actually moves people away from any access to counsel they may have. Then there are the conditions on top of that where the phones do not work consistently, there are no legal materials in the library. This goes to detention conditions. It’s all really interlinked. Can we look at a system where alternatives to detention are really the norm, where there is access to counsel and access to pro bono services, and where if detention is used at all, it’s used in those rare cases where it’s needed for public safety? It’s hard to look at one piece of the system without seeing the impact of the overarching detention and deportation system.

Peters-Quintero: The issue of local enforcement has been in the news recently. Omar, you’ve worked on this issue. What is the problem, if you see one? Is there room for state and local bodies to enforce immigration law?

Jadwat: This comes up in several ways: 287(g) is the statutory program that allows state and local police to enter into agreements with the federal government to do certain aspects of immigration enforcement. There’s also a whole bunch of other initiatives that seek to involve local law enforcement without a 287(g) agreement. Like, linking up the jail computer systems with ICE’s computer system.

One obvious problem with having state and local police involved in enforcement is in terms of trying to get the federal government to intelligently prioritize and exercise discretion. That is made infinitely more difficult when it’s not the federal government doing the initial thing that gets people into this process. They’re cramming more people into the funnel with either no federal oversight because it’s part of some informal program, or, in the 287(g) program, no use of the potential oversight that might be built into those agreements.

Another problem is that if you tell police that part of their job is to arrest illegal aliens, then, with the minimal training that a 287(g) officer would get, or, as is often the case when you have some sort of immigration enforcement without that training, often the way that gets implemented is that people of color and particularly Latinos get stopped and run through the system. So you have all of the negative effects of profiling and of estranging the police from the community.

Rodríguez: It is about setting priorities in two ways. One is the extent to which using police in the enforcement of immigration law can complement the setting of federal priorities, or whether it’s actually creating incoherence.

In the second sense, it’s about priorities with respect to policing communities and advancing the public safety mission of law enforcement. If these agreements do undermine the ability of police to establish trust in places where they need trust, then they’re a problem. The potential erosion of trust is why a lot of police chiefs are opposed to them.

Because it’s a relatively new phenomenon, we have only strong intuitions about why it frustrates both sets of priorities, and the fear of racial profiling is obviously one. There’s a growing body of anecdotal evidence suggesting that that’s exactly how 287(g) authority is used. A study by the General Accounting Office just came out that is the most comprehensive look at how the agreements are actually operating in practice. The main problem is the absence of supervision; police officers are simply being told to arrest illegal immigrants and are then engaging in unfettered decision-making about who that means they should arrest.

So it goes back to what we were talking about before in finding mechanisms of oversight and accountability to make it work. Only if you can do that does it make sense as a model.

Rosenbloom: Just a final thought to tie together two themes that have emerged. People need counsel, and maybe they even need appointed counsel. That would be expensive. At the same time, the agency is spending millions of dollars each year to detain and deport people who are not a threat to the United States in any way. So let’s save some money by scaling back these enforcement actions, and shift the dollars over to appointed counsel. That would take care of both problems together.

Peters-Quintero: That’s a great note to end on. I would just add, as someone who is not working directly on immigration enforcement, that I hope the issues discussed today get taken up by the wider immigrant rights community, and by legislators and policymakers who are supporting positive comprehensive immigration reform. As we wait to see when and how Congress will take up immigration reform again, today’s discussion is an important reminder that a true commitment to creating a more humane and just immigration system must include working to address the immigration enforcement issues raised here. Thank you all for your contributions.

*Mr. Costa participated as an alumnus and not in his official capacity with the department of homeland security.